Plaintiff Diane Schroer sues defendant Librarian of Congress for
sex discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a)(1). In the alternative, she asserts a claim under the
Equal Protection Clause of the Fifth Amendment. She also presses claims under
the Due Process Clause of the Fifth Amendment and the Library of Congress Act,
2 U.S.C. § 140. Defendant has moved to dismiss the complaint, or in the
alternative, for judgment on the pleadings.

Background

Plaintiff’s allegations are laid out in detail in my March 31,
2006, memorandum, Schroer v. Billngton, 424 F. Supp. 2d 203 (D.D.C. 2006), and
will be restated here only briefly. Diane Schroer is a male-to-female transsexual. In August 2004, before
she changed her name or began presenting herself as a woman, Schroer applied
for a position as a terrorism research analyst with the Congressional Research
Service (CRS), a division of the Library of Congress. She was invited to
interview for the position and did so under her previous male name, attending
the interview dressed in traditionally masculine clothing. Shortly after
the interview, Charlotte Preece of the CRS called to offer Schroer the
position, and, on December 16, 2004, Schroer accepted. Preece and Schroer
arranged to meet for lunch during the following week to discuss details such as
Schroer’s start date. At that meeting, Schroer explained to Preece that she was
under a doctor’s care for gender dysphoria and that, consistent with her
treatment, she was about to change her name, begin dressing in traditionally
feminine attire, and start presenting herself full-time as a woman. In part to
allay any concerns that Preece might have about whether Schroer would be
dressing in a workplace-appropriate manner, Schroer showed Preece photographs
of herself, dressed in traditionally feminine clothing. As they were leaving
the restaurant, Preece told Schroer that she had “really given [her] something
to think about.” Am. Compl. at P 45. The next day, Preece called Schroer and
said that after a “long, restless night” she had decided that “for the good of
the service,” Schroer would not be a “good fit” given the “circumstances that
[they] spoke of yesterday.” Id. at P 48. On February 7, 2005, Schroer received
a form email stating that the terrorism research analyst position had been
filled.

Schroer timely filed an administrative complaint with the Equal Employment
Office of the Library of Congress, alleging sex discrimination under Title VII.
After exhausting her appeals, Schroer filed this suit. On August 1, 2005, the
defendant moved to dismiss, arguing that Schroer could not make out a prima
facie case of employment discrimination under Title VII because the statute
does not prohibit discrimination on the basis of transsexualism or gender
identity. I denied that motion and explained that there were at least two
conceivable theories according to which discrimination against a transsexual
may violate Title VII’s proscription of discrimination “because of . . . sex.”
42 U.S.C. § 2000e-2(a)(1).

First, an allegation that the decisionmaker was motivated by the
plaintiff’s failure to conform to sex stereotypes can state a claim under the
Price Waterhouse line of cases. Thus, an allegation by a male-to-female
transsexual that she was discriminated against because of her failure to act or
appear feminine enough for her employer states a claim under Title VII. Schroer’s
original complaint did not state this kind of sex stereotyping claim, however.
It alleged only that her non-selection was the direct result of her disclosure
of her gender dysphoria.

That claim was the second theory described in my March 2006 memorandum--that
discrimination against transsexuals because they are transsexuals might
“literally” be discrimination “because of . . . sex” and therefore be
prohibited by the plain terms of the statute itself. See Ulane v. Eastern
Airlines, Inc., 581 F. Supp. 821, 825 (N.D. Ill. 1983). Before reaching a
definitive conclusion on whether the definition of sex under Title VII should
be so construed, however, I asked the parties to develop a factual record that
“reflects the scientific basis of sexual identity in general, and gender
dysphoria in particular.” Schroer, 424 F. Supp. 2d at 213.

The parties have compiled such a record. It consists largely of
the reports and depositions of two physicians who have considerable experience
with gender identity disorder. Plaintiff offers the testimony of Dr. Walter O.
Bockting, an Associate Professor in the Department of Family Medicine and
Community Health at the University of Minnesota Medical School. Bockting, who
holds the position of Coordinator of Transgender Health Services, explains that
a person’s sex is a multifaceted concept that incorporates a number of factors,
including sex assigned at birth, hormonal sex, internal and external
morphological sex, hypothalamic sex, and gender identity. Bockting Supp. Decl.
at P 5 [Dkt. # 30, Ex. 5]. Defendant’s expert, Dr. Chester W. Schmidt, takes a
narrower view. Schmidt, who is a Professor of Psychiatry at the Johns Hopkins
University School of Medicine, asserts that sex refers only to a person’s
chromosomal configuration -- xy for males and xx for females. Schmidt Decl. at
P 9 [Dkt. # 30, Ex. 3].

On April 26, 2007, the defendant filed its second motion to
dismiss, or in the alternative, for judgment on the pleadings. [Dkt. # 30]. In
this motion, the defendant relies on Dr. Schmidt’s opinion, arguing that sex is
not synonymous with sexual or gender identity and that Title VII should not
therefore be read as extending protection against discrimination on the basis
of gender identity. Plaintiff opposed that motion [Dkt. # 35], but she also
amended her complaint to add the sex stereotyping claim that had been absent
from her original complaint. [Dkt. # 39]. The amended complaint alleges that
Schroer’s non-selection resulted from Preece’s reaction on seeing photographs of
Schroer in women’s clothing -- specifically, that Preece believed that Schroer
looked “like a man in women’s clothing rather than what she believed a woman
should look like.” Am. Compl. at P 46. The amended complaint also alleges that
Preece’s decision was based on the belief that Schroer would not be viewed as a
credible authority on terrorism by members of Congress because, in Preece’s
view, Schroer’s “appearance when presenting as a female would not conform to
[members of Congress’] social stereotypes regarding how women should look, and
[] members of Congress would not believe that a woman could, in fact, have the
kind of life experiences that were part of [Schroer’s] background.” Id. at P
47. On August 6, 2007, the defendant filed a third motion to dismiss all
claims. [Dkt. # 41].

Analysis

In order to survive a Rule 12(b)(6) motion to dismiss, a
complaint must make sufficient factual allegations to suggest “plausible
grounds” for the suit. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965, 167
L. Ed. 2d 929 (2007). “[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the
complaint.” Id. at 1968.

1. Title VII

Schroer’s amended complaint states a sex stereotyping claim
under Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct.
1775, 104 L. Ed. 2d 268 (1989)(“we are beyond the day when an employer could
evaluate employees by assuming or insisting that they matched the stereotype
associated with their group”). The plaintiff in Price Waterhouse, a female
senior manager, was denied partnership in part because she was perceived to be
too “macho” for a woman. Id. at 235. Her employer advised her that she would
improve her chances at partnership if she would “take ‘a course at charm
school’“ and would “‘walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear jewelry.’“ Id. “In the
specific context of sex stereotyping,” the Court explained, “an employer who
acts on the basis of a belief that a woman cannot be aggressive, or that she
must not be, has acted on the basis of gender.” Id. at 250.

Applying
the logic of Price Waterhouse, numerous federal courts have held that punishing
employees for failure to conform to sex stereotypes, including stereotypes
regarding dress and appearance, is a form of sex discrimination actionable
under Title VII. See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256
F.3d 864, 874 (9th Cir. 2001) (male plaintiff stated a Title VII claim where he
was harassed “for walking and carrying his tray ‘like a woman’ -- i.e., for
having feminine mannerisms”); Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252, 261 n.4 (1st Cir. 1999) (“Just as a woman can ground an action on a
claim that men discriminated against her because she did not meet stereotyped
expectations of femininity, a man can ground a claim on evidence that other men
discriminated against him because he did not meet stereotypical expectations of
masculinity.”); Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1997)
(“a man who is harassed because his voice is soft, his physique is slight, his
hair is long, or because in some other respect he . . . does not meet his
coworkers’ idea of how men are to appear and behave, is harassed ‘because of’
his sex”), vacated and remanded on other grounds, 523 U.S. 1001, 118 S. Ct.
1183, 140 L. Ed. 2d 313 (1998). In her amended complaint, Schroer invokes this line of sex stereotyping
cases.

Schroer’s transsexuality is not a bar to her sex stereotyping
claim. Title VII is
violated when an employer discriminates against any employee, transsexual or
not, because he or she has failed to act or appear sufficiently masculine or
feminine enough for an employer. This is not to say that Schroer’s
gender dysphoria is of no significance: a Price Waterhouse-type claim could not
be supported by facts showing that Schroer’s non-selection resulted solely from
her disclosure of her gender dysphoria and her intention to present herself as
a woman. As my previous opinion explained, this is so because protection from
sex stereotyping is different, not in degree, but in kind, from protecting
transsexuals as transsexuals. The point here, however, is that Schroer does not
claim that disclosure of her gender dysphoria was the singular cause of her
non-selection. Instead, informed by the discovery she has taken, Schroer now
asserts that she was discriminated against because, when presenting herself as
a woman, she did not conform to Preece’s sex stereotypical notions about
women’s appearance and behavior.

Because
Schroer has stated a Title VII claim based on a sex stereotyping theory, the
defendant’s motion to dismiss must be denied, and it will not be necessary to
decide at this time on the alternative theory of her amended complaint, whether
discrimination against transsexuals because they are transsexuals is
“literally” discrimination “because of . . . sex.” As it may become
necessary to draw lines at a later stage, however -- in limine, or in jury
instructions -- the following observations may be useful to the parties. First,
it is of no moment that the defendant’s expert would limit the definition of
sex, as a medical matter, to a person’s “chromosomal configuration.” It is
well-established that, as a legal concept, “sex” as used in Title VII refers to
much more than which chromosomes a person has. As the Sixth Circuit has
explained, “[b]y holding that Title VII protected a woman who failed to conform
to social expectations concerning how a woman should look and behave, the
Supreme Court established that Title VII’s reference to ‘sex’ encompasses both
the biological differences between men and women, and gender discrimination,
that is, discrimination based on a failure to conform to stereotypical gender
norms.” Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004).

Second, however, plaintiff’s definition of sex under Title VII
may be too expansive. At the time of my 2006 opinion there was no relevant
legislative history as to Title VII’s relationship to discrimination on the
basis of sexual identity. That is no longer the case. In recent months, a bill
which would have banned employment discrimination on the basis of both sexual
orientation and gender identity was introduced in the House of Representatives.
See H.R. 2015, 110 Cong., 1st Sess. (2007). An alternate bill that prohibited
discrimination only on the basis of sexual orientation was also introduced. See
H.R. 3685, 110 Cong., 1st Sess. (2007). The House ultimately passed the version
that banned discrimination only on the basis of sexual orientation. Companion
legislation in the Senate has not yet been introduced. If Title VII itself bans
discrimination on the basis of sexual or gender identity, the omission of
protection for transsexuals in H.R. 3685 may be meaningless, but, even in an
age when legislative history has been dramatically devalued as a tool for
statutory interpretation, one proceeds with caution when even one house of
Congress has deliberated on a problem and, mirabile dictu, negotiated a
compromise solution.

2. Due Process

Schroer contends that she has “a constitutionally protected
liberty interest in making medical decisions without penalty by the government in
the absence of constitutionally sufficient justification.” Pl.’s Mem. in Opp.
to Mot. to Dismiss at 30 [Dkt. # 34]. Specifically, she seeks to vindicate a
right to take “the medically appropriate steps to bring her body into
conformity with her gender identity.” Am. Compl. at 65.

The Due Process Clause of the Fifth Amendment “provides
heightened protection against government interference with certain fundamental
rights and liberty interests,” Washington v. Glucksberg, 521 U.S. 702, 720, 117
S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997), including “the rights
to marry, to have children, to direct the education and upbringing of one’s
children, to marital privacy, to use contraception, to bodily integrity, and to
abortion.” Abigail Alliance for Better Access to Developmental Drugs v. Von
Eschenbach, 495 F.3d 695, 702 (D.C. Cir. 2007) (en banc) (internal citation and
quotation marks omitted). As a general matter, the Supreme Court has “always
been reluctant to expand the concept of substantive due process because
guideposts for responsible decisionmaking in this unchartered area are scarce
and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.
Ct. 1061, 117 L. Ed. 2d 261 (1992). Judicial reluctance flows from the effect
of such constitutional rulings: “By extending constitutional protection to an
asserted right or liberty interest, we, to a great extent, place the matter
outside the arena of public debate and legislative action.” Glucksberg, 521
U.S. at 720. As a result, “the Supreme Court has directed courts to ‘exercise
the utmost care whenever we are asked to break new ground in this field, lest
the liberty protected by the Due Process Clause be subtly transformed into the
policy preferences of the [courts’ members].’“ Abigail Alliance, 495 F.3d at
702 (quoting Glucksberg, 521 U.S. at 720).

The Supreme Court has described substantive due process analysis
as having “two primary features.” Id.

First, we have regularly observed that the Due
Process Clause specially protects those fundamental rights and liberties which
are, objectively, deeply rooted in this Nation’s history and tradition and
implicit in the concept of ordered liberty, such that neither liberty nor
justice would exist if they were sacrificed. Second, we have required in
substantive-due-process cases a careful description of the asserted fundamental
liberty interest.

Id. at 720-21 (internal
citation and quotation marks omitted). Even assuming that Schroer’s claim meets
the careful description requirement, she cannot show that the decision to
undergo gender reassignment is entitled to constitutional protection. Our
circuit has recognized that the constitutional right to privacy does not
“comprehensively protect[] all choices made by patients and their physicians or
subject[] to ‘strict scrutiny’ all government interference with choice of
medical treatment.” New York State Ophthalmological Soc’y v. Bowen, 272 U.S.
App. D.C. 170, 854 F.2d 1379, 1389 (D.C. Cir. 1988). No court has held that the
Constitution extends protection to a person’s decision to undergo gender
reassignment and, critically, Schroer has not attempted to show that this right
is either deeply rooted in this country’s history or implicit to the concept of
ordered liberty.

Because the decision to undergo gender reassignment does not
implicate a fundamental liberty interest, Schroer can only assert a substantive
due process claim if she had a protected property interest in the job with
Library of Congress itself. Our circuit has assumed that when a public employee
has a property interest in continued employment, substantive due process may be
violated when the employer acts “irrationally and arbitrarily” in terminating
the employee. Yates v. District of Columbia, 355 U.S. App. D.C. 344, 324 F.3d
724, 726 (D.C. Cir. 2003) (per curiam). Schroer, however, does not assert that
she had a property interest in the terrorism research analyst position. See
Pl.’s Mem. In Opp. To Def.’s Mot. to Dismiss at 27 [Dkt. # 7]. The lack of such
an interest is fatal to her substantive due process claim. See Singleton v.
Cecil, 176 F.3d 419, 424 (8th Cir. 1998) (en banc) (“Merely labeling a
governmental action as arbitrary and capricious, in the absence of the
deprivation of life, liberty, or property, will not support a substantive due
process claim.”); Independent Enters. v. Pittsburgh Water & Sewer Auth.,
103 F.3d 1165, 1179 (3d Cir. 1997) (“a substantive due process claim grounded
in an arbitrary exercise of governmental authority may be maintained only where
the plaintiff has been deprived of a [constitutionally protected] property
interest”) (internal citation omitted); Zorzi v. County of Putnam, 30 F.3d 885,
895 (7th Cir. 1994) (“Thus, in the absence of a life, liberty or property
interest [public employee] could be terminated for arbitrary and capricious
reasons.”).

3. Library of Congress Act

Finally,
Schroer’s prayer for equitable relief pursuant to the Library of Congress Act
must be dismissed. That statute provides that “[a]ll persons employed in and about
said Library of Congress . . . shall be appointed solely with reference to
their fitness for their duties.” 2 U.S.C. § 140. Although the statute does not
set up a private cause of action for its violation, Schroer argues that her
claim is well-pleaded according to the doctrine of non-statutory review. Under
this doctrine, “‘judicial review is available when an agency acts ultra vires,’
even if a statutory cause of action is lacking.” Trudeau v. FTC, 372 U.S. App.
D.C. 335, 456 F.3d 178, 190 (D.C. Cir. 2006) (quoting Aid Ass’n for Lutherans
v. United States Postal Serv., 355 U.S. App. D.C. 221, 321 F.3d 1166, 1173
(D.C. Cir. 2003)). Non-statutory review is a doctrine of last resort, “intended
to be of extremely limited scope” and applicable only to preserve judicial
review when an agency acts “in excess of its delegated powers.” Griffith v.
Federal Labor Relations Authority, 268 U.S. App. D.C. 491, 842 F.2d 487, 493
(D.C. Cir. 1988). The doctrine does not apply in a case such as this one, where
the injury the plaintiff alleges may be fully remedied under a statutorily
provided cause of action -- here, under Title VII.

*
* *

The defendant’s motions to dismiss [Dkt. # 30, # 41] are denied
in part and granted in part. The Clerk is directed to set a status conference,
for the purpose of discussing and scheduling the next steps in this case.